Barry Graham Farlie v Magistrate Ross Sterland & anor

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Magistrate Sterland JUDICIAL OFFICER :

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

13000/03 Barry Graham Farlie v Magistrate Ross Sterland and anor

JUDGMENT 1 HISLOP J: On 2 April 2003 the plaintiff was charged with the offences of using offensive language in a public place contrary to the Summary Offences Act 1988 s 4A(1) and resisting a police officer in the execution of his duty contrary to the Crimes Act 1900 s 58. The proceedings were successfully defended by the plaintiff before the first defendant in the Local Court at Queanbeyan. At the conclusion of the proceedings the plaintiff sought an order for costs. The application was refused.

2 On 12 November 2003 the plaintiff issued a summons in this Court seeking relief in respect of the refusal to award costs, pursuant to s 65 or alternatively s 69 of the Supreme Court Act 1970 ("SCA"), alternatively leave to appeal pursuant to s 104 of the Justices Act 1902. After the completion of the hearing plaintiff's counsel, by leave, furnished supplementary written submissions in which he accepted that "…the plaintiff's only apparent avenue of redress is pursuant to s 69 of the Supreme Court Act 1970". This judgment accordingly is confined to a consideration of the plaintiff's entitlement, if any, to relief pursuant to s 69 SCA. 3 In ASIC v Farley (2001) 51 NSWLR 494 at 498 Sperling J said: Section 69 of the Supreme Court Act 1970 provides that this Court has power to grant relief in the nature of certiorari by judgment or order. Section 69(3) and s 69(4), as introduced in 1996, provide as follows: "(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination." The phrase "error of law" is not limited to jurisdictional error. Accordingly, since 1996 but subject to other legislation, this Court has had power to grant relief in the nature of certiorari for any error of law that appears on the face of the record of the proceedings (which includes the reasons for determination of the court or tribunal concerned). That includes non-jurisdictional error…. 4 It was accepted by the plaintiff that in order to succeed it was necessary for him to establish an error of law on the face of the record. It was agreed between the parties that the record included the transcript of proceedings before the first defendant, as well as the reasons for decision. 5 The facts sufficiently appear from the first defendant's determination of the substantive proceedings. That determination was as follows: The defendant had been fishing that afternoon in the river and he was carrying a fishing pole and carrying his fishing gear in a small bag when he attracted the attention of Constable [Wallace] who was driving an unmarked vehicle and was in plain clothes….the defendant Farlie was nearly run over by that car and that is where it all started.

Farlie says that the police car failed to put on his blinker and the police officer said he did. And there was a dispute at that time where we had oath against oath. The policeman says one thing, the defendant says something else. The policeman alleges that he used language such as "You fucking spastic cunt. Fuck me, you arsehole", and then the police vehicle continued on. And then there was a further altercation at the corner of Atkinson Street and Bungendore Street.

Now the first set of facts which I have given were not witnessed apparently by anybody, or anybody that we know of. However, the second confrontation was witnessed by Kirsty Watson. And in a case of oath against oath it is sometimes hard balancing the two, and bearing in mind the onus of proof of which is required. And I will briefly say this; I felt that she was an honest witness and I felt that she did her best to tell it as it was. The constable did not come out very well on her view of it, but of course she was not able to assist me in what happened in the first instance when the car made the left hand turn. But she was sufficiently satisfactory in my view to cast a doubt on the evidence of the police generally; if what she says is true then what the officers are saying is not.

So far as the intoxication is concerned the defendant says that he had, I think, two drinks or three drinks. That certainly would not be enough to make him so intoxicated that he would not know what he was doing or unsteady on this [sic- his] feet, or speech slurred or whatever. As I said, it is unfortunate the incident ended up with this man with a broken arm, but I am not trying that particular matter. It was part of the factors that ended up in him being forced onto the ground, apprehended and arrested and charged with these offences.

But so far as the matters before me are concerned I cannot be satisfied beyond a reasonable doubt and the charges are dismissed. 6 The application and decision as to costs was as follows: Counsel: I seek an order for costs, if your Worship pleases. Bench: I'll hear you but I'm restrained by the Costs in Criminal Cases Act. Counsel: You are. Can I make the submission very briefly? Your Worship, with great respect, has touched on the most important aspect of this case towards the end of your reasons. If what she says is true then what the officers are saying is not. Bench: Basically that's right, yes. Counsel: And your Worship has accepted this young lady as a witness of truth. In those circumstances it follows as night follows day that you are rejecting the evidence of the officers. If you reject the evidence of the officers it follows also that this has been a perverse prosecution, and in those circumstances, sir, I would invite you to make an order for costs. Would your Worship just bear with me? Could I take your Worship to the recently amended provisions of the Criminal Procedure Act 1986, section 213, and subsection 4, "Without limiting the operation of subsection 1", and that is a general discretion to award costs, "a court may order that the prosecutor in summary proceedings pay costs if the matter is dismissed because the matter is withdrawn or the proceedings are for any reason invalid". And we say that that encompasses a false prosecution of the very sort that you've had to adjudicate upon today. Can I take you back, though, to subsection 1, "A court may at the end of summary proceedings order that the prosecutor pay costs to the Registrar of the Court for payment to the accused person if the matter is dismissed or withdrawn". Bench: Could I say this, that I have a look at what the police had in their hands at the start; they did not have the evidence of Kirsty Watson. She did not turn up at the station and make a statement. Counsel: No, that's right. Bench: Had they had her statement it may well have been that they might have had a rethink about it. Counsel: No, because it follows, sir, inexorably from your finding, that if what she says is true, what the officers are saying is not, And you've accepted that she's a witness of truth, ergo it follows that what the police officers are saying is untruthful, and in particular Constable Wallace knew it was untruthful. That must be the effect of your decision with respect, and there would be no justification in depriving this man of his costs in those circumstances. Bench: Mm. Do you wish to say anything on this? Prosecutor: Briefly, sir. My friend's applying a new section which cannot apply to this case, this offence that took place on 2 April 2003. Bench: So it did, yes, yes. Prosecutor: This new legislation came in in July. Bench: That's right. Prosecutor: You can only apply the old Justices Act section A(1)(?). And clearly from those - with the possible exception of exceptional circumstances. And I appreciate what my friend's saying, but I don't think - well, first of all, it would be my submission that you cannot award costs in this matter, or should not, your Worship. The fact is at the end of the day we did lose based upon her evidence, but as you already noted she didn't come forward and give a statement. Bench: It would have been helpful had she done so earlier on. Prosecutor: Certainly if I'd had her statement we'd have had another look -we may have had a look, but in any event, sir, with the possible exception of exceptional circumstances, and I suggest this wouldn't apply in this case, I'd ask you not to entertain the thought of granting costs. Bench: Yes. I've got a discretion in this case. Counsel: Could I just say so it's on the record, sir? Bench: Yes. Counsel: I'm sorry, just so it's on the record because it may be that this matter won't finish here; 214(b) is the analogue of the old Justices Act provision. We say that the proceedings were initiated without reasonable cause or in bad faith. And we say that because it follows that Officer Wallace must have known that he was the only one who could know that what he was saying was simply false. And your Worship's found that. Bench: Yes, I hear what you both say, but I'm of the - I've got a discretion in this case and I decline to award costs. 7 This interchange evidenced some initial confusion as to the basis of the application. The plaintiff did not seek a certificate for costs pursuant to the Costs in Criminal Cases Act 1967 s 3 and accordingly that Act had no application. The Criminal Procedure Act 1986 had no application as the offence was committed and the proceedings commenced prior to the commencement on 7 July 2003 of the amendments to that Act (see Schedule 2 clause 32 of that Act). The application was in fact pursuant to s 81 of the Justices Act 1902 as was ultimately recognised.

8 Section 81 of the Justices Act provided relevantly: …. 81(1A) When making an order dismissing the information, complaint or charge against a defendant, the Justice or Justices may order that the prosecutor or complainant pay to the defendant such professional costs as the Justice or Justices consider to be just and reasonable. …. (4) Professional costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecution in an improper manner, (c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the defendant might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecution, it is just and reasonable to award professional costs. …. (7) In this section: "professional costs" means costs (other than court costs) relating to professional expenses and disbursements (including witnesses' expenses) in respect of proceedings before a Justice or Justices. 9 Section 81 thus prohibits an award of professional costs in favour of a successful defendant unless one (or more) of the matters referred to in s 81(4)(a) - (d) is established. There is no discretion in this regard. If one or more of the matters in s 81(4)(a) - (d) is established, then the Magistrate has a discretion as to whether to make an order for professional costs or not. 10 The plaintiff submitted before the first defendant that s 81(4)(b) applied as the proceedings were initiated without reasonable cause or in bad faith. If this submission was accepted, the first defendant had a discretion under s 81(1A) to award costs to the plaintiff, but not otherwise. 11 The first defendant's reasons for his decision on costs were shortly stated. He said, "Yes, I hear what you both say, but I'm of the - I've got a discretion in this case and I decline to award costs." 12 The matters which had been put to the first defendant by counsel for the plaintiff were that the proceedings were initiated without reasonable cause or in bad faith and thus costs should be awarded to the plaintiff. The prosecutor submitted that costs could not be awarded or alternatively should not be awarded, particularly as, if the eyewitness statement had been made available to the prosecution, the prosecutor may have reconsidered the position. 13 The plaintiff submitted four errors of law were apparent on the face of the record, namely: (a) a failure to give adequate reasons for his refusal to award costs to the plaintiff; (b) a failure to appreciate the bounds of his discretion; (c) the taking into account of extraneous matters; (d) the findings were perverse and unreasonable. The alleged errors are considered hereunder.

Failure to give adequate reasons 14 Generally speaking, there is an obligation on a judicial officer to give reasons for his or her decision. The discharge of that obligation does not require lengthy or elaborate reasons but it is necessary that the essential ground or grounds upon which the decision rests should be articulated - Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 per McHugh J at 280 D - E. 15 The articulation of reasons enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis for the Judge's decision, and without the articulation of reasons, a judicial decision cannot be distinguished from an arbitrary decision - Soulemezis per McHugh J at p 279 A-E 16 The first defendant's reasons do not articulate the essential grounds upon which the decision rests. The first defendant does not state whether he found the matters in s 81(4)(b) had been established or not; nor does he expressly state what matters he took into account in the exercise of his discretion, or how he reached his ultimate conclusion. These matters are left to inference. 17 In Ramskogler v DPP (1995) 82 A Crim R 128, the Court of Appeal had before it an application for certiorari by a defendant who, having successfully defended a criminal trial in the District Court, was refused a certificate for his costs by the trial judge. It was submitted on his behalf that there had been a failure by the trial judge to give adequate reasons for refusing to grant a certificate. Kirby P (as he then was) at 136 stated: The DPP submitted that, if the claimant were dissatisfied with the reasons given by the trial judge for rejecting the application, then he was obliged to ask the Judge for satisfactory reasons then and there. In general, it is true, where a trial judge has failed to give, or has given insufficient reasons for a decision, the dissatisfied party should immediately point this out to the Judge. If I thought that Mr Littlemore had acquiesced in the failure of Johnston DCJ to give reasons for his decision on the costs application, the claimant would be bound by Mr Littlemore's election, however hard that might be on him personally.

Sheller JA agreed with the orders of Kirby P substantially for the reasons he had given. Handley JA, who had dissented in the result, said (at 141): If senior counsel considered that the reasons disclosed in argument were not sufficient, it was his duty either to press his application for an adjournment or to ask his Honour to give fuller reasons. 18 That decision provides an appropriate compromise between the obligation to give reasons and the need for courts, such as Local Courts, not to be unnecessarily delayed in disposing of the extremely heavy workload placed upon them. 19 Counsel for the plaintiff contemplated the possibility of an appeal at the time of the costs argument. He was concerned to put matters on the record, "Because it may be this matter won't finish here". In the circumstances, it was his duty to ask the first defendant for fuller reasons if he considered those given were deficient. In the absence of such a request, this basis for relief fails.

Failure to appreciate the bounds of his discretion 20 The plaintiff submitted that the costs discretion should have been exercised with regard to the principles laid down by the High Court in Latoudis v Casey (1990) 97 ALR 45 and that the first defendant never turned his mind to those principles.

21 In Latoudis Mason J held (at 51): …in ordinary circumstances, an order for costs should be made in favour of a successful defendant. However, there will be cases in which, when regard is had to the particular circumstances, it would not be just and reasonable to order costs against the prosecutor…; (see similarly Toohey J). 22 McHugh J (at 69-70) said: …it needs to be stressed that, subject to any contrary legislative indication, costs in summary proceedings do not follow the event and that a successful defendant in such proceedings, … has no right to an order for costs…a successful defendant in summary proceedings has a reasonable expectation of obtaining an order for the payment of his or her costs because it is just and reasonable that the informant should reimburse him or her for liability for costs which have been incurred in defending the prosecution… Speaking generally, before a Court deprives a successful defendant in summary proceedings of his or her costs, it will be necessary for the informer to establish … that the conduct of the defendant occasioned unnecessary expense in the institution or conduct of the proceedings…Thus, non-disclosure to investigatory police of a tape recording later successfully used in cross-examination of the informant's witnesses may be a relevant matter to be taken into account in determining whether the defendant should be awarded costs. 23 The costs discretion which the first defendant had was similar to the discretion referred to in Latoudis at 69/35 - /40 subject to the fact that it was exercisable only in the event that one of the matters in s 81(4) was established. The first defendant was not requested by the plaintiff's counsel to give fuller reasons which, if given, may have evidenced error by the first defendant, if such had occurred. On the material available it has not been demonstrated the first defendant was not aware of the bounds of his discretion. Accordingly, this ground for relief fails.

The taking into account of extraneous matters 24 The plaintiff submitted the first defendant took into account extraneous and irrelevant material in exercising his discretion, namely, that the prosecution did not have a statement of the evidence of the independent witness and if that had been furnished to them the proceedings may have been reconsidered. 25 I do not agree that such a consideration was extraneous and irrelevant. It appears clear from the decision in Latoudis that matters such as the non-disclosure to investigatory police of evidential material which may have a substantial impact upon the prosecution case may provide a legitimate basis for refusing a defendant's costs application. This ground for relief fails. The findings were so unreasonable as to amount to an error of law 26 The first defendant clearly exercised his discretion against the plaintiff but whether he did so after upholding or rejecting the application of s 81(4)(b) or simply ignoring that subsection is unclear. This lack of clarity is a consequence of the failure to require the first defendant to give reasons for his decision. 27 The plaintiff submitted it was a perverse exercise in fact finding for the first defendant not to conclude that the proceedings were instituted without reasonable cause or in bad faith within s 81(4)(b) and this was an error of law. 28 However in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155G-156B, the Court of Appeal held: To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law.

Accordingly, even if a finding that s 81(4)(b) was not established was perverse, and I do not accept that such a finding would have been, it would not avail the plaintiff as no error of law would be established. 29 The plaintiff has further submitted the exercise of discretion itself was so manifestly unreasonable and plainly unjust that there must have been in some unidentified way an error of law in the exercise of the discretion. 30 However it was open to the first defendant to conclude, as it appears he may well have done, that the failure of the plaintiff to furnish a copy of the independent witnesses statement to the prosecution militated against an award of costs. In my opinion the exercise of discretion was not so manifestly unreasonable or plainly unjust that there necessarily must have been an error of law by the first defendant in the exercise of the discretion. Accordingly, this ground for relief fails.

Conclusion 31 In my opinion, the plaintiff has failed to establish an error of law on the face of the record. Accordingly, the summons must be dismissed.

Orders 32 The order of the Court is that the Summons is dismissed. I make no order as to costs in this Court, but grant liberty to the parties to apply within 10 days if a costs order is sought.

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